IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, )

)

v. )

) I.D. No. 1112020007

PATRICK OWUSU, )

Defendant. )

Date Submitted: August 31, 2018

Date Decided: September 20, 2018

Upon Defendant’s Motion for Postconviction Relief

DENIED AS MOOT

ORDER

This 20th day of September, 2018, upon consideration of the Motion for 

Postconviction Relief filed by Defendant, Patrick Owusu, the Court is divested of its 

jurisdiction to consider the pending motion and finds as follows:

1. By its express terms, the Delaware Superior Court Criminal Rules 

provides that relief pursuant to Rule 61 is only available to a defendant “in custody 

under a sentence of this court[.]”

1 The Delaware Supreme Court has explained that 

a person loses standing to move for postconviction relief under Rule 61 where the 

defendant is not in custody or subject to future custody for the underlying offense or 

challenged sentence.2 The Superior Court has consistently applied this standard in 

summarily dismissing postconviction motions. 

 

1 Super. Ct. Crim. R. 61(a)(1).

2 Pumphrey v. State, 2007 WL 3087405, at *1 (Del. 2007).
2

2. Defendant’s sentence, which was imposed after a violation-ofprobation hearing was held on August 10, 2012, had a final expiration date of August 

10, 2017. Defendant argues that he is entitled to relief because he is detained for 

purposes of deportation as a result of his sentence in this case. Where a defendant 

understands that deportation may follow as a potential result to pleading guilty to 

criminal charges, this is merely a “collateral, and not a direct, consequence” of the 

defendant’s sentence.3 During the initial plea colloquy, Defendant acknowledged 

his understanding of the deportation risks associated with pleading guilty to a 

felony.4 In addition, Defendant signed a truth-in-sentencing form acknowledging 

that conviction of a criminal offense may result in deportation. Despite Defendant’s 

contentions, his current detainment for purposes of deportation is entirely separate 

from the sentence imposed and he is no longer in custody under a sentence of this 

Court. Therefore, the Court is divested of jurisdiction and the pending Motion for 

Postconviction Relief is moot.

3. Pursuant to Rule 61(d)(5), “[i]f it plainly appears from the motion for 

postconviction relief and the record of prior proceedings in the case that the movant 

 

3 See State v. Ruiz, 2007 WL 4577586, at *4 (Del. Super. 2007), aff’d 956 A.2d 

643 (Del. 2008). “A collateral consequence ‘is one that is not related to the length 

or nature of the sentence imposed on the basis of the plea.’” Id. at *3.

4 State v. Owusu, I.D. No. 1112020007, at 20-23 (Del. Super. June 26, 2012) 

(Herlihy, J.) (TRANSCRIPT).
3

is not entitled to relief, the judge may enter an order for its summary dismissal.”5 

Even if Defendant’s postconviction motion qualified for review on the merits, 

summary dismissal would be appropriate for the following two reasons:

(i) First, Defendant’s motion does not satisfy the procedural requirements 

of Rule 61(i) and is therefore time-barred. Rule 61(i)(1) requires a 

motion for postconviction relief be filed within one year after the 

judgment of conviction is final.6 Defendant was sentenced on August 

10, 2012, and did not file a direct appeal. As a result, Defendant’s 

conviction became final on September 10, 2012. Defendant filed this 

motion on August 31, 2018, almost six years after his conviction 

became final. To avoid the procedural time bar of Rule 61(i)(1), 

Defendant must satisfy the requirements of Rule 61(i)(5), which 

provides that procedural bars “shall not apply either to a claim that the 

court lacked jurisdiction or to a claim that satisfies the pleading 

requirements of subparagraphs (2)(i) or (2)(ii) of subdivision (d) of this 

rule.” 7 Defendant’s motion does not claim that the court lacked 

jurisdiction nor does it “plead with particularity that new evidence 

 

5 Super. Ct. Crim. R. 61(d)(5).

6 Super. Ct. Crim. R. 61(i)(5).

7

Id.
4

exists that creates a strong inference that the movant is actually 

innocent” or “plead with particularity a claim that a new rule of 

constitutional law, made retroactive . . . [and] appli[cable] to the 

movant’s case and renders the conviction . . . invalid.”8 Accordingly, 

Defendant’s motion does not satisfy the procedural requirements of 

Rule 61(i)(1) and, therefore, his motion is time-barred. 

(ii) Second, Defendant’s claim of ineffective assistance of counsel fails for 

the reasons previously set forth by this Court in its Order Denying 

Patrick Owusu’s Motion for Appointment of Counsel.9

NOW, THEREFORE, on this 20th day of September, 2018, Defendant’s 

Motion for Postconviction Relief is hereby DENIED AS MOOT.

IT IS SO ORDERED.

Andrea L. Rocanelli

______________________________________________________

The Honorable Andrea L. Rocanelli

 

8 Super. Ct. Crim. R. 61(d)(2)(i), (ii).

9 State v. Owusu, I.D. No. 1112020007, at 4-5 (Del. Super. January 29, 2015) 

(ORDER).